AN ACT to amend and reenact section two, article ten, chapter eight
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend and reenact section one,
article thirty-four of said chapter, all relating to municipal
court procedures; requiring municipal court judges to complete
mandatory training; providing that municipal courts follow the
rules of criminal procedure for magistrate courts; providing
for appeals from municipal court to circuit court; creating
time frames, bonds and stays for such appeals; providing
limited record of such court proceedings; providing for the
preparation and designation of such records for appeal,
electronic recordation of trials and preparation of
transcripts of such proceedings; providing circuit court
discretion to schedule oral argument, receive memoranda of law
and take evidence; providing factors and standards for appeals of municipal court decisions; establishing time frames for
circuit court review of such proceedings; providing actions
which the circuit court may take to dispose of such appeals;
and clarifying eligibility to the judicial retirement system.

Be it enacted by the Legislature of West Virginia:
That section two, article ten, chapter eight of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; and that section one, article thirty-four of
said chapter be amended and reenacted, all to read as follows:

ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.

PART II. MUNICIPAL COURT.

§8-10-2. Municipal court for municipalities.

(a) Notwithstanding any charter provision to the contrary, any
city may provide by charter provision and any municipality may
provide by ordinance for the creation and maintenance of a
municipal court, for the appointment or election of an officer to
be known as municipal court judge, and for his or her compensation,
and authorize the exercise by the court or judge of the
jurisdiction and the judicial powers, authority and duties set
forth in section one of this article and similar or related
judicial powers, authority and duties enumerated in any applicable
charter provisions, as set forth in the charter or ordinance.
(b) Effective the first day of July, one thousand nine hundred
ninety-eight, any person who assumes the duties of municipal court judge who has not been admitted to practice law in this state shall
attend and complete the next available course of instruction in
rudimentary principles of law and procedure. The course shall be
conducted by the municipal league or a like association whose
members include more than one half of the chartered cities and
municipalities of this state. The instruction must be performed by
or with the services of an attorney licensed to practice law in
this state for at least three years. Any municipal court judge
serving on the first day of July, one thousand nine hundred ninety- eight, shall complete such course within one year, unless he or she
has been admitted to the practice of law in this state. Any
municipal court judge may, thereafter, attend a course for the
purpose of continuing education. The cost of any course referred
to in this section shall be paid by the municipality which employs
the municipal judge.
(c) Only a defendant who has been charged with an offense for
which a period of confinement in jail may be imposed is entitled to
a trial by jury. If a municipal court judge determines, upon
demand of a defendant, to conduct a trial by jury in a criminal
matter, it shall follow the procedures set forth in the rules of
criminal procedure for magistrate courts promulgated by the supreme
court of appeals, except that the jury in municipal court shall
consist of twelve members.
(d) Effective the first day of July, one thousand nine hundred ninety-eight, a police court judge of any municipality shall
thereafter be referred to as the municipal court judge.
ARTICLE 34. JUDICIAL REVIEW.

§8-34-1. General right of appeal; recordation of jury trial;
preparation of record.

(a) Every person sentenced under this chapter by any mayor,
acting in a judicial capacity, or municipal court judge to
confinement or to the payment of a fine may appeal that sentence to
the circuit court as provided in this section. When the
municipality is located in more than one county, the appeal shall
be taken to the circuit court of the county in which the major
portion of the territory of the municipality is located.
(b) For purposes of appeal, when a jury trial is had before a
mayor or in municipal court, that court shall be a court of limited
record. Trials before a mayor or municipal court when a jury is
empaneled shall be recorded electronically. A magnetic tape or
other electronic recording medium on which a trial is recorded
shall be indexed and securely preserved by the court. When
requested by the municipal prosecutor or by the defendant, or by
any interested person, that court shall provide a duplicate copy of
the tape or other electronic recording medium of each trial held.
For evidentiary purposes, a duplicate of such electronic recording
prepared by the court shall be a "writing" or "recording" as those
terms are defined in rule 1001 of the West Virginia rules of evidence, and unless the duplicate is shown not to reflect the
contents accurately, it shall be treated as an original in the same
manner that data stored in a computer or similar data is regarded
as an "original" under such rule. Unless the requesting party is
a defendant proceeding as an indigent, the party shall pay to the
court an amount equal to the actual cost of the tape or other
medium or the sum of five dollars, whichever is greater.
(c) If the defendant in such a proceeding waives the right to
trial by jury or if no jury trial is required by law, the matter
shall be tried by the mayor or municipal court judge sitting
without a jury. For purposes of appeal, when a nonjury trial is
had before a mayor or municipal court judge that court shall not be
a court of limited record and the proceedings shall not be
electronically recorded.
(d) Any person convicted of an offense by a mayor or municipal
court judge may appeal such conviction to circuit court as a matter
of right by requesting such appeal within twenty days after the
sentencing for such conviction. The mayor or municipal court judge
may require the posting of bond with good security conditioned upon
the appearance of the defendant as required in circuit court, but
such bond may not exceed the maximum amount of any fine which could
be imposed for the offense. The bond may be upon the defendant's
own recognizance. If no appeal is perfected within such twenty-day
period, the circuit court may, not later than ninety days after the sentencing, grant an appeal upon a showing of good cause why such
appeal was not filed within the twenty-day period. The filing or
granting of an appeal shall automatically stay the sentence of the
mayor or municipal court judge.
(e) In the case of an appeal of such a proceeding tried before
a jury, the hearing on the appeal before the circuit court shall be
a hearing on the record. In the case of an appeal of such a
proceeding tried before the mayor or municipal court judge without
a jury, the hearing on the appeal before the circuit court shall be
a trial de novo, triable to the court, without a jury.
(f) In the case of an appeal of such a proceeding tried before
a jury, the following provisions shall apply:
(1) To prepare the record for appeal, the defendant shall file
with the circuit court a petition setting forth the grounds relied
upon, and designating those portions of the testimony or other
matters reflected in the recording, if any, which he or she will
rely upon in prosecuting the appeal. The municipal prosecutor may
designate additional portions of the recording. Unless otherwise
ordered by the circuit court, the preparation of a transcript of
the portions of the recording designated by the defendant, and the
payment of the cost thereof shall be the responsibility of the
defendant: Provided, That such costs may be waived due to the
defendant's indigence. The circuit court may, by general order or
by order entered in a specific case, dispense with preparation of a transcript and review the designated portions of the recording
orally.
(2) The designated portions of the recording or the transcript
thereof, as the case may be, and the exhibits, together with all
papers and requests filed in the proceeding, constitute the
exclusive record for appeal, and shall be made available to the
defendant and the municipal prosecutor.
(3) After the record for appeal is filed in the office of the
circuit clerk, the court may, in its discretion, schedule the
matter for oral argument or require the parties to submit written
memoranda of law. The circuit court shall consider whether the
judgment or order of the mayor or municipal court judge is:
(A) Arbitrary, capricious, an abuse of discretion or otherwise
not in conformance with the law;
(B) Contrary to constitutional right, power, privilege or
immunity;
(C) In excess of statutory jurisdiction, authority or
limitations or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by the evidence; or
(F) Unwarranted by the facts.
(4) The circuit court may take any of the following actions
which may be necessary to dispose of the questions presented on
appeal, with justice to the defendant and the municipality:
(A) Dismiss the appeal;
(B) Reverse, affirm or modify the judgment or order being
appealed;
(C) Remand the case for further proceedings, with instructions
to the mayor or municipal court judge;
(D) Finally dispose of the action by entering judgment on
appeal; or
(E) Retain the matter and retry the issues of fact, or some
part or portions thereof, as may be required by the provisions of
subdivision (5) of this subsection.
(5) If the circuit court finds that a record for appeal is
deficient as to matters which might be affected by evidence not
considered or inadequately developed, the court may proceed to take
such evidence and make independent findings of fact to the extent
that questions of fact and law may merge in determining whether the
evidence was such, as a matter of law, as to require a particular
finding. If the circuit court finds that the proceedings below
were subject to error to the extent that the defendant was
effectively denied a jury trial, the circuit court may, upon motion
of the defendant, empanel a jury to reexamine the issues of fact,
or some part or portions thereof.
(6) The review by the court and a decision on the appeal shall
be completed within ninety days after the appeal is regularly
placed upon the docket of the circuit court.
(g) In the case of an appeal of a municipal court proceeding
tried without a jury, the defendant shall file with the circuit
court a petition for appeal and trial de novo. The exhibits,
together with all papers and requests filed in the proceeding,
constitute the exclusive record for appeal and shall be made
available to the parties.
(h) Notwithstanding any other provision of this code to the
contrary, there shall be no appeal from a plea of guilty where the
defendant was represented by counsel at the time the plea was
entered: Provided, That the defendant shall have an appeal from a
plea of guilty where an extraordinary remedy would lie or where the
mayor or municipal court judge lacked jurisdiction.
(i) The designation in this section of a mayor, acting as
municipal court judge, or of municipal courts as "courts of limited
record" shall not be construed to give standing or eligibility to
mayors or municipal court judges to participate or be included in
the retirement system for judges of courts of record established
under the provisions of article nine, chapter fifty-one of this
code.